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Author Topic: "Doctrine of Laches"  (Read 7282 times)

speciallady

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"Doctrine of Laches"
« on: Sep 18, 2005, 10:36:36 AM »
Gathering information here and trying to decide on an attorney so any information is greatly appreciated.

CA contols the support order, although BM and children live in OR and BF lives in NV.
Stipulation was agreed on in January 2005 by BF to continue paying CA support amount, along with arrears and payments to CA for arrears for welfare received. Signed by judge in April.

In June, BM files in NV to have interest added on to arrears. 10% compounded annually for the past 10 years. Current support order ends June, 2006 as the children turn 18 in March and graduate in June.
She got a computer printout from the state of OR and took it to an accountant to figure out the compounded interest and that was filed with her request.
This printout does NOT show the amounts paid via the state of CA, however, NV CSE does have the complete audit with all payments shown.
(example--OR shows NO payments for the entire year of 2003, but CA has those payments documented).

Questions:
1) Would Doctrine of Laches apply here? She is asking for the interest, not the state. Current order is almost ending so an attorney mentioned this doctrine.
2) CA controls the order, so CA laws apply, yes? Several attorneys here in NV were unsure if interest could be compounded to begin with.
3) Is there any legal responsibility/accountability on BM's part for knowingly filing a printout that was not accurate?

Thanks :)


socrateaser

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RE: Doctrine of Laches...
« Reply #1 on: Sep 18, 2005, 10:37:29 AM »
>Gathering information here and trying to decide on an
>attorney so any information is greatly appreciated.
>
>CA contols the support order, although BM and children live in
>OR and BF lives in NV.
>Stipulation was agreed on in January 2005 by BF to continue
>paying CA support amount, along with arrears and payments to
>CA for arrears for welfare received. Signed by judge in
>April.
>
>In June, BM files in NV to have interest added on to arrears.
>10% compounded annually for the past 10 years. Current support
>order ends June, 2006 as the children turn 18 in March and
>graduate in June.
>She got a computer printout from the state of OR and took it
>to an accountant to figure out the compounded interest and
>that was filed with her request.
>This printout does NOT show the amounts paid via the state of
>CA, however, NV CSE does have the complete audit with all
>payments shown.
>(example--OR shows NO payments for the entire year of 2003,
>but CA has those payments documented).
>
>Questions:
>1) Would Doctrine of Laches apply here? She is asking for the
>interest, not the state. Current order is almost ending so an
>attorney mentioned this doctrine.

Laches is the combination of unreasonable delay in prosecuting one's legal rights and a resulting unfair prejudice caused to the defending party. It certainly is arguable that not seeking to add interest to the judgment arrears for the past 10 years is a rather long time, however, that doesn't necessarily make it unreasonable. The question of unfair prejudice is the more important question -- have you done things for the children or the other parent during the past 10 years that, but for the interest not being collected, you would not have done? Have you made any substantial gifts, or paid the other parent extra money, or done any substantial labor on the other parent's or children's behalf? Have you purchased a more expensive home, or otherwise taken on substantially greater debts, as a consequence of your not being assessed the interest charges, and would an assessment now, cause you to be unable to satisfy these debts?

Also, if there is something in the January 2005 stipulated judgment that you would not have agreed to had the other parent attempted to obtain the interest payments at that time, and if there was a reasonable likelihood that you would have prevailed in getting a court to resolve that something in your favor if you had allowed a judge to decide the matter, rather than settling, then that would be a perfect Laches defense.

If you can answer these questions yes, especially as regards the other parent, then you have a Laches defense. If not, then you don't.

Of particular importance is making certain that the NV court knows that Laches has been used in CA before to excuse child support under such circumstances, and also, examining the circumstances under NV law upon which Laches has been used in the past. In reality, ony CA law applies, however, the judge will be familiar with NV rules and may confuse the two, possibly to your advantange if you can find more favorable NV case law.

>2) CA controls the order, so CA laws apply, yes? Several
>attorneys here in NV were unsure if interest could be
>compounded to begin with.

Yes. Interest accrues at 10% per annum on the unpaid arrears principal balance still outstanding on Dec 31 of each year and is NOT compounded.

>3) Is there any legal responsibility/accountability on BM's
>part for knowingly filing a printout that was not accurate?

Well, the question is, can you prove with "clear and convincing" evidence that BM knowingly misrepresented your arrears balance to the court? If you can, then you can ask the court to dismiss the entire action under the "clean hands doctrine," because the other parent's actions would be fraudulent.

This is not that simple to do, but if there's a lot of money at stake, then I would want to depose the other parent and get her to answer questions regarding how she calculated the arrears, in an attempt to trip her up. I would not advance a fraud defense in writing before deposing the mother, because she will have a chance to massage her story to show that her misrepresentation was innocent. Example:

Q: Why do you believe you are entitled to 10% interest per year for the past 10 years?

A: (you don't really care).

Q: Why do you believe that you are entitled to have the interest compounded annually?

A: My attorney told me. (evidence of fraud, because no competent attorney would so advise without checking in advance).

But, if she says, "The accountant told me," or "I looked up the law myself," then you're sunk on the fraud argument, because it's just an ignorant mistake, and the court won't hold her to her calculations.

If you can't prove a fraud, then you won't get anywhere on this issue, because it's your job to defend yourself and uncover mistakes in the other party's pleading -- exactly as you have done.

speciallady

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RE: Doctrine of Laches...
« Reply #2 on: Sep 18, 2005, 11:32:53 AM »
Thanks so much my legal friend!
As for fraud--BM was sent the complete audit, along with BF, and NV CSE (requested by OR CSE as a matter of fact).

She has mentioned that one attorney has been advising her although I do not think this attorney has been retained by her.


Thanks again!

socrateaser

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RE: Doctrine of Laches...
« Reply #3 on: Sep 18, 2005, 11:45:55 AM »
>Thanks so much my legal friend!
>As for fraud--BM was sent the complete audit, along with BF,
>and NV CSE (requested by OR CSE as a matter of fact).
>
>She has mentioned that one attorney has been advising her
>although I do not think this attorney has been retained by
>her.
>
>
>Thanks again!

Well, if she was sent the audit before she filed her action to compound the arrears, then that would show a material falsification as to the amount in arrears owed, and that would get you to a "clean hands" defense.

speciallady

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Update and....
« Reply #4 on: Sep 20, 2005, 05:38:37 PM »
confirmation from OR CSE--BM was sent the complete audit and CSE will confirm this for any court.
Possible legal action on BF's part due to this material falsification? Knowningly filing false info?

THanks again :)


socrateaser

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RE: Update and....
« Reply #5 on: Sep 20, 2005, 07:15:01 PM »
>confirmation from OR CSE--BM was sent the complete audit and
>CSE will confirm this for any court.
>Possible legal action on BF's part due to this material
>falsification? Knowningly filing false info?

If she filed info different from what she received, and she received the official records prior to her filing, then that is pretty clear evidence of material falsification, unless she stated in her filing that she disputed the official records.

Can you prove that she received the records from OR CSE early enough so that there's no reasonable likelihood that she didn't have that info prior to filing her motion.

Actually, if she received more relevant info, she should have filed a supplimental declaration stating the changes, or at least contacted you to notify you that her request was going to be substantially different based on the new data.

If she didn't, then she's probably trying to pull a fast one, and you have a "clean hands" defense.

speciallady

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RE: Update and....
« Reply #6 on: Sep 20, 2005, 07:37:54 PM »
thanks again!
OH yes, she received the official audit which includes all payments to OR and CA in late 04.
She filed this request in June 05. She filed the OR print out and the paper the accountant prepared (10% interest compounded annually for the past 10 years, as you recall).
Nothing else was filed.

OR CSE will verify what was sent and when.

socrateaser

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RE: Update and....
« Reply #7 on: Sep 20, 2005, 09:42:05 PM »
I think you may be missing the point. If she files the OR report and relies on it for her calculations, then that does not show an intent to defraud, because she's merely relying on an incorrect official document. Now if you have proof that she was in possession of an accurate audit but that she filed the inaccurate OR report anyway, then that would be proof of fraud.

The issue of the accountant miscalculating is easily dismissed because the accountant isn't expected to know the law -- he/she will merely do what the client requests. So, if the client requests that 10% be compounded annually, then that's what the accountant will do.

Once again, if you can prove that she knew at the time that she filed the accountant's audit, that she wasn't entitled to compound interest, then that would be fraud, and you could defend using "clean hands." But, otherwise, you cannot and believe me, the court will bend over backwards to make you pay this bill in full, so your evidence of fraud/material falsification/perjury, must be airtight.

speciallady

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RE: Update and....
« Reply #8 on: Sep 21, 2005, 08:52:17 AM »
Point understood.
thanks again~

speciallady

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One more question....
« Reply #9 on: Sep 22, 2005, 08:13:05 PM »
based on more information.

BM just went through a support modification in CA regarding a different BF. I believe this was in May 2005.
BM was at the hearing and interest was added for this BF and NOT compounded, of course.
So, prior to BM filing for compounded interest (June 05), she had been through the court process (May 05) with another BF.
CA controls both orders.

1) Does this info shed any "light" on what has been previously discussed? ie, show her knowledge of the whole interest question before she filed?

2) Just something nagging here---the OR printout shows NO payments received for the entire year of 2003 and that was used to compound the interest figures. BM knows payments were received during that year and has mentioned amounts paid during that year, several times.
(yes, written proof)
She knew CA was receiving payments (written proof again).
Obvious fraud?

socrateaser

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RE: One more question....
« Reply #10 on: Sep 22, 2005, 11:04:41 PM »
>based on more information.
>
>BM just went through a support modification in CA regarding a
>different BF. I believe this was in May 2005.
>BM was at the hearing and interest was added for this BF and
>NOT compounded, of course.
>So, prior to BM filing for compounded interest (June 05), she
>had been through the court process (May 05) with another BF.
>CA controls both orders.
>
>1) Does this info shed any "light" on what has been previously
>discussed? ie, show her knowledge of the whole interest
>question before she filed?

It's not absolutely convincing, but it could be with a few more facts. I'd put her on the stand and ask her the questions I suggested earlier. Then, I'd ask her, "So then it's fair to say that you are absolutely certain that you are entitled to compound interest, because of your prior experience and research?"

If she says anything close to "yes," I'd produce a certified copy of the final order in the other case, and ask the court to admit it into evidence. Then I'd ask her to explain how it is, with her being so sure of her rights, why this prior order from the same CA jurisdiction does not have any compound interest?" (I don't really care what her answer is). Then I'd say, "What really happend is you just think your entitled to a little extra money, huh?"

No matter how she answers, the court gets the message.

>2) Just something nagging here---the OR printout shows NO
>payments received for the entire year of 2003 and that was
>used to compound the interest figures. BM knows payments were
>received during that year and has mentioned amounts paid
>during that year, several times.
>(yes, written proof)
>She knew CA was receiving payments (written proof again).
>Obvious fraud?

This is actually a better argument than the prior. Ask her:

Q: How many support payments did you receive from me during 2003?

A: X, or I don't know. If "I don't know," then

Your honor, I have a copy of a printout from CA DCCS showing that X disbursements were made to Ms. ___ in 2003, and I ask that it be admitted into evidence.

Q: Please take a look at this printout and confirm that it shows you received X support payments in 2003.

A: Yeah, ok, I got X payments, so what?

Q: In your pleading you have requested $Y based on a printout from the State of Oregon showing that you received nothing in 2003. Why did you ask for money that you knew you weren't entitled to?

A: Huh? Oh, I guess I forgot.

No further questions, your honor.

I don't know if the above gets you to a fraud, but it's pretty clear and convincing evidence of deceit or willful ignorance -- either of which gets you a "clean hands" defense, and a dismissal of the action for arrears with prejudice -- which is what you want.

No guarantees, but a good trial lawyer should be able to make your ex look like John Gotti.

speciallady

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Another update :)
« Reply #11 on: Oct 21, 2005, 02:12:51 PM »
Found an attorney that has stated pretty much what you have here--thanks so much, btw, for all your guidance!

Lady attorney--she's appalled that BM is trying to do this especially when the current order will be ending soon and BF has been paying consistantly. Mentioned that a judge will see right through this obvious attempt to keep BF is servitude---my kinda gal!


Thanks again and will let you know what happens come December~

speciallady

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Just thought of another question...
« Reply #12 on: Oct 22, 2005, 04:58:54 PM »
if you would be so kind :)

Would asking for attorneys fees be appropriate? In light of the false information, etc....?

socrateaser

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RE: Just thought of another question...
« Reply #13 on: Oct 22, 2005, 11:03:03 PM »
>if you would be so kind :)
>
>Would asking for attorneys fees be appropriate? In light of
>the false information, etc....?

Yes.

speciallady

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Another update :)
« Reply #14 on: Oct 21, 2005, 02:12:51 PM »
Found an attorney that has stated pretty much what you have here--thanks so much, btw, for all your guidance!

Lady attorney--she's appalled that BM is trying to do this especially when the current order will be ending soon and BF has been paying consistantly. Mentioned that a judge will see right through this obvious attempt to keep BF is servitude---my kinda gal!


Thanks again and will let you know what happens come December~

speciallady

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Just thought of another question...
« Reply #15 on: Oct 22, 2005, 04:58:54 PM »
if you would be so kind :)

Would asking for attorneys fees be appropriate? In light of the false information, etc....?

socrateaser

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RE: Just thought of another question...
« Reply #16 on: Oct 22, 2005, 11:03:03 PM »
>if you would be so kind :)
>
>Would asking for attorneys fees be appropriate? In light of
>the false information, etc....?

Yes.

speciallady

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Hawaii vacation for you my friend!
« Reply #17 on: Oct 26, 2005, 11:40:10 PM »
okay, I can't afford that but you're welcome in Vegas any time!

This is baffling/confusing...
the hearing in December, as quoted by the notice, is to review before the "Child Support Hearing Master", the NRS...that standing for "Nevada Revised Statutes", (there's 5 listed).

1) Now, if CA controls the order, which it does and is stated in the last stipulation agreement (April 05, signed by judge), do any of these Nevada statutes even apply?
The one listed for this hearing on the pubic online court information is NRS 425--which, briefly, is to determine if the CP is on public aid. (there's other things in there about determining parentage...).

*The complete audit, sent to all parties, including Nevada court, has the whole support payments broken up into "On Aid/Off Aid audit" and the full one with both.....

socrateaser

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RE: Hawaii vacation for you my friend!
« Reply #18 on: Oct 27, 2005, 09:51:47 AM »
>This is baffling/confusing...

Yes, it is:

1. CA law controls the amount of the arrears owed.

2. NV law controls ongoing support.

3. NV law controls court the legal process, including equitable defenses, because you are seeking an equitable defense before a NV court, and the other party has brought an action in NV. However, to the extent that CA law has prohibited the equitable defense of Laches to be limited to only interest on arrears, and not to the principal support balance owed, CA law controls, because a different ruling from a NV court would subvert the original CA arrears judgment, and it would promote forum shopping after the judgment to defeat the restrictions of CA law. Obviously, everyone seeking an equitable defense to a past judgment of arrears would quickly run to a more favorable jurisdiction, if they thought that they could get rid of the entire arrearage by proving a fraud in the new jurisdiction, rather than by proving the fraud in the old jurisdiction.

What's confusing is that this last point may be missed by the judge, and you may be able to use it to your advantage, if NV law is more liberal in the area of equitable defenses. I don't know whether NV law is better and that if you prove that the other parent has attempted to defraud the court, that you may be discharged from the entire arrearage. It's a very tough call, for a number of reasons, the most important of which, is that if you discuss this issue with your NV attorney, and he/she recognizes that NV law would give you a better deal, but that CA controls, and the other party's attorney fails to recognize the existence of controlling law or precedent, then under the Rules of Professional Conduct, YOUR attorney must inform the court of the conflict, or your attorney could be subject to suspension or disbarrment for failing ot notify the court.

So, the catch-22 is that you don't want your attorney to actually know how CA deals with laches or any other equitable defense to a support arrearage. You want him/her and the court concentrating on NV law, UNLESS you discover that NV law in this area is worse than CA law.

So, you'll either need a second attorney who is not part of the litigation to do the research for you, or you'll have to do it yourself (or, you can take your chances that your attorney won't recognize the potential ethics violation and that he/she will advocate the more favorable law and "inadvertantly" forget that the less favorable law may be controlling.

Very confusing.

speciallady

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thank you!
« Reply #19 on: Oct 28, 2005, 08:03:57 PM »
and to quote our attorney today, after meeting with her for an hour.....
"she's toast!"


If you care to know the reasons why ( little different than what has been discussed here) please let me know if I can email you as the BM in this case reads here :)

socrateaser

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ok, i'll bite...write me...
« Reply #20 on: Oct 28, 2005, 09:18:40 PM »

 

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